Case 3:09-cv-00104-WAP-MPM Document 15-2 Filed 12/21/2009 Page 1 of 32

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF MISSISSIPPI

JOHN TYLER CLEMONS et al., )

)
Plaintiffs, )
)
v. )
) Civil Action No. 3:09-cv-104-P-A
U.S. DEPARTMENT OF COMMERCE et )
al. )
)
Defendants. )

MEMORANDUM IN SUPPORT OF DEFENDANTS’ MOTION TO DISMISS

OR, IN THE ALTERNATIVE, FOR SUMMARY JUDGMENT

INTRODUCTION

Plaintiffs are voters in five states who claim that the Constitution requires the House of

Representatives to expand in size to either 932 or 1,761 Representatives based on the results of

the 2000 decennial census. Plaintiffs argue that the 2001 Congressional apportionment plan

created interstate Congressional districts that vary in population, and that this variance violates

the constitutional requirement that Representatives be apportioned to States “according to their

respective numbers.”

The same premise has been rejected by the only federal court that has considered it.

Subject to an explicit minimum and maximum, the Constitution grants Congress discretion to fix

the size of the House of Representatives. Plaintiffs’ argument to the contrary is premised on a

line of decisions requiring the States to achieve population equality, to the extent practicable, in

drawing the Congressional districts within their States. The Supreme Court has already held this

standard inapplicable to Congress’s apportionment of Representatives among the States. The

Court explained, and has since reiterated, that the same standard of population equality cannot

apply to Congressional apportionment because the Constitution itself makes population equality

1
Case 3:09-cv-00104-WAP-MPM Document 15-2 Filed 12/21/2009 Page 2 of 32

among interstate Congressional districts virtually impossible. Furthermore, over two hundred

years of implementation of the apportionment provisions of the Constitution confirm the broad

discretion the Constitution vests in Congress to fix the size of the House of Representatives,

irrespective of population disparities that result from the number selected by Congress.

Plaintiffs’ challenge is also barred by the six-year statute of limitations applicable to this

action and/or the equitable doctrine of laches. Plaintiffs challenge the apportionment plan that

followed the 2000 decennial census, which the President transmitted to Congress in January

2001. Instead of filing this lawsuit in 2001, however, Plaintiffs waited over eight years to

challenge the plan. In those eight years, four Congressional election cycles have passed. The

November 2010 mid-term elections are the only elections that remain before the apportionment

plan Plaintiffs challenge will be superseded as a result of the next decennial census. Even if this

lawsuit could be resolved by this Court and the Supreme Court prior to November 2010, the

tumult that would accompany the rapid addition of many hundreds of Congressional districts

before that time, and after numerous state candidate filing deadlines and primaries will have

passed, strongly supports application of the doctrine of laches.

For these reasons, this Court should dismiss this lawsuit.

CONSTITUTIONAL & STATUTORY BACKGROUND

A. RELEVANT CONSTITUTIONAL & STATUTORY PROVISIONS

Article I, Section 2, Clause 3 of the Constitution, as amended by the Fourteenth

Amendment, provides that:

Representatives shall be apportioned among the several States according to their

respective numbers, counting the whole number of persons in each State. . . . The
Number of Representatives shall not exceed one for every thirty Thousand, but each State
shall have at Least one Representative . . . .

2
Case 3:09-cv-00104-WAP-MPM Document 15-2 Filed 12/21/2009 Page 3 of 32

U.S. Const. art. I, § 2, cl. 3. Furthermore, an “actual Enumeration” of persons in the States must

be made every ten years, “in such Manner as [the Congress] shall by Law direct.” Id.

Pursuant to these provisions, Congress enacted the current Census Act, which directs the

Secretary of Commerce to conduct a census, as of April 1 of 1980, and every tenth year

thereafter, “in such form and content as he may determine.” 13 U.S.C. § 141(a). The tabulations

required for apportionment “shall be completed within 9 months after the census date and

reported by the Secretary to the President of the United States.” Id. § 141(b). Under the current

apportionment law, the President must then transmit to Congress, during the first week of its next

Session, “a statement showing the whole number of persons in each State,” as ascertained by the

census. 2 U.S.C. § 2a(a).

The President’s statement must also show “the number of Representatives to which each

State would be entitled under an apportionment of the then existing number of Representatives

by the method known as the method of equal proportions, no State to receive less than one

Member.” Id. The apportionment law further provides that “[e]ach State shall be entitled . . . to

the number of Representatives shown in the [President’s] statement required by [2 U.S.C.

§ 2a(a)],” and it directs the Clerk of the House of Representatives, within 15 days after receipt of

the President’s statement, “to send to the executive of each State a certificate of the number of

Representatives to which such State is entitled under this section.” Id. § 2a(b).

B. CONSTITUTIONAL HISTORY

Even apart from the “great compromise” of the Constitutional Convention – which

resulted in equal representation of the States in the Senate and representation of the States

according to their respective populations in the House of Representatives – the composition of

the House of Representatives was a subject of significant discussion during the Convention.

3
Case 3:09-cv-00104-WAP-MPM Document 15-2 Filed 12/21/2009 Page 4 of 32

On July 5, 1787, Elbridge Gerry introduced a resolution that would have fixed the

number of Representatives at “one Member for every forty thousand inhabitants,” provided

“[t]hat each State not containing that number shall be allowed one Member.” 1 The Records of

the Federal Convention of 1787 524 (Farrand ed. 1911) (hereafter “Farrand”). In the debate of

this resolution, concern was expressed that “the Ratio of Representation proposed could not be

safely fixed, since in a century & a half our computed increase of population would carry the

number of representatives to an enormous excess.” Id. at 541. Others objected that some

measure of each State’s wealth, in addition to or instead of its inhabitants, ought to be the

measure of apportionment. Id. at 533-34, 541-42.

Ultimately a committee was formed (the Morris Committee) to consider the composition

of the House of Representatives. Id. at 542. The Morris Committee recommended that the

initial House consist of 56 members, with the distribution among the several States specifically

set forth, and that Congress be accorded the power “to augment the number of

representatives . . . upon the principles of . . . wealth and number of inhabitants.” Id. at 557-58.

In making this recommendation, the Morris Committee noted two objections to the ratio

proposed by Gerry:

The Ist. was that the Representation would soon be too numerous: the 2d. that the Westn.
States who may have a different interest, might if admitted on that principal by degrees,
out-vote the Atlantic. Both these objections are removed. The number will be small in
the first instance and may be continued so, and the Atlantic States having ye. Govt. in
their own hands, may take care of their own interest, by dealing out the right of
Representation in safe proportions to the Western States.

Id. at 559-60.

The Morris Committee’s proposal was then submitted to a grand committee of thirteen

(the King Committee). Id. at 562. The King Committee proposed an initial composition of 65

members, again with the specific distribution set forth. Id. at 563. In debating this proposal,

4
Case 3:09-cv-00104-WAP-MPM Document 15-2 Filed 12/21/2009 Page 5 of 32

James Madison moved to double the number of representatives because the proposed number

“would not possess enough of the confidence of the people, and wd. be too sparsely taken from

the people, to bring with them all the local information which would be frequently wanted.” Id.

at 568-69. The opposition pointed out the added expense and the dangers of excessive number

reducing the body’s efficiency. Id. at 569. Others suggested that a maximum number of

Representatives might be fixed, thereby removing any danger of excess. Id. at 569-70.

Madison’s motion to increase the size was nonetheless defeated. Id. at 570. The Convention

approved a resolution adopting a 65-member initial allocation of Representatives and further

specifying that that number shall be augmented from time to time according to the “principle

of . . . inhabitants.” 2 Farrand at 13-14.

The resolution was then referred to a Committee of Detail, which maintained the initial

allocation of 65 members but adopted a ratio of “one for every forty thousand” thereafter. Id. at

178. Madison objected that fixing a permanent ratio would eventually result in an “excessive”

number of Representatives. Id. at 221. He moved to amend the provision to add the phrase “not

exceeding” before “one for every forty thousand,” and that amendment was accepted. Id. John

Dickinson moved to add a provision guaranteeing at least one Representative to every State,

which was also accepted. Id. at 223. Hugh Williamson later proposed a motion to increase the

initial number by half and to give every State at least two Representatives. Id. at 553-54, 612.

That proposal was defeated. Id. at 554, 612.

On September 10, 1787, a 23-article document was referred to the Committee of Style

and Arrangement. See id. at 565-80. Article I, section 2, clause (b) of the document that

emerged from the Committee stated in relevant part that “[t]he number of representatives shall

5
Case 3:09-cv-00104-WAP-MPM Document 15-2 Filed 12/21/2009 Page 6 of 32

not exceed one for every forty thousand, but each state shall have at least one representative,”

and it set forth the 65-member initial allocation as previously resolved. Id. at 591.

On September 17, 1787, the last day of the Convention, Nathaniel Gorham moved to

strike “40,000” and insert in its place “30,000” as the minimum number of persons per

Representative. Id. at 643-44. According to Madison, “[t]h[is] would not he remarked establish

that as an absolute rule, but only give Congress a greater latitude which could not be thought

unreasonable.” Id. at 644. The motion carried unanimously. Id.

C. STATUTORY HISTORY

In the decades following the ratification of the Constitution, Congress enacted a new

apportionment act after each decennial census. In those acts, Congress fixed the size of the

House by selecting a number of persons to be represented by each Representative (the “ratio”),

and then allocated Representatives by dividing the ratio into each State’s population. Act of Apr.

14, 1792, 1 Stat. 253 (one Representative per 33,000 persons); Act of Jan. 14, 1802, 2 Stat. 128

(33,000); Act of Dec. 21, 1811, 2 Stat. 669 (35,000); Act of Mar. 7, 1822, 3 Stat. 651 (40,000);

Act of May 22, 1832, 4 Stat. 516 (47,700); Act of June 25, 1842, § 1, 5 Stat. 491 (70,680).

These early apportionment acts generated extended debates about how best to handle the

“fractional remainders” that resulted from the division of the ratio by each State’s population and

that led to population disparities among interstate districts. See generally, e.g., Michel L.

Balinski & H. Peyton Young, Fair Representation: Meeting the Ideal of One Man, One Vote 10-

35 (2001).

Following the 1850 census, Congress enacted legislation that fixed the size of the House

of Representatives at 233 members and dictated the apportionment method to be applied

following each census, thereby making each decennial reapportionment virtually self-executing.

6
Case 3:09-cv-00104-WAP-MPM Document 15-2 Filed 12/21/2009 Page 7 of 32

Act of May 23, 1850, §§ 24-26, 9 Stat. 428, 432-433. Representative Samuel Vinton had

introduced the bill in large part to ensure that Congressional failure to enact an apportionment

law after a decennial census would not block the decennial reapportionment. Cong. Globe, 31st

Cong., 1st Sess. 862-63 (1850). Because the number would be fixed, any member wishing to

increase or decrease the number would bear the burden to persuade Congress that a 233-member

House was either too large or too small. Id. at 863. After debating the appropriate number,

Congress settled on 233. Id. at 923-30, 939-40; Act of May 23, 1850, § 24, 9 Stat. 428, 432.

The fixed size did not last. In 1852, Congress assigned an additional Representative to

California, Act of July 30, 1852, § 1, 10 Stat. 25, and, in 1862, assigned an additional

Representative to each of eight States, Act of Mar. 4, 1862, 12 Stat. 353. In 1872, Congress

increased the size of the House to 283, Act of Feb. 2, 1872, § 1, 17 Stat. 28, and then, four

months later, assigned an additional Representative to each of nine States, Act of May 30, 1872,

17 Stat. 192. After each succeeding decennial census, Congress enacted a new apportionment

law that increased the size of the House to prevent any State from losing a Representative. Act

of Feb. 25, 1882, § 1, 22 Stat. 5 (325 Representatives); Act of Feb. 7, 1891, § 1, 26 Stat. 735

(356 Representatives); Act of Jan. 16, 1901, § 1, 31 Stat. 733 (386 Representatives); Act of Aug.

8, 1911, § 1, 37 Stat. 13 (435 Representatives).1

Following the 1920 census, Congress for the first time failed to pass any apportionment

legislation. Controversy had arisen over the accuracy of the 1920 census, dramatic population

shifts from rural to urban areas, and the large size of the House (483 members) that would have

been necessary to prevent any State from losing a seat. See H.R. Rep. No. 70-2010, at 3 (1929).

1
The 1911 Act fixed the total number of Representatives at 433 but provided that
additional Representatives would be allocated to Arizona and New Mexico if, as happened the
next year, they were admitted to the Union. Act of Aug. 8, 1911, § 2, 37 Stat. 14.

7
Case 3:09-cv-00104-WAP-MPM Document 15-2 Filed 12/21/2009 Page 8 of 32

Numerous bills were introduced and hearings held at the beginning and toward the end of the

1920s, but Congress could not reach agreement. See H.R. Rep. No. 66-1173 (1921); H.R. Rep.

No. 67-312 (1921); H.R. Rep. No. 70-1137 (1928); H.R. Rep. No. 70-2010 (1929); S. Rep. No.

70-1446 (1929); S. Rep. No. 71-2 (1929); Apportionment of Representatives: Hearings on H.R.

14498, 15021, 15158 and 15217 Before the House Comm. on the Census, 66th Cong., 3d Sess.

(1920-1921); Apportionment of Representatives in Congress Amongst the Several States:

Hearings on H.R. 111, 398, 413, and 3808 Before the House Comm. on the Census, 69th Cong.,

1st Sess. (1926); Apportionment of Representatives in Congress Amongst the Several States:

Hearings on H.R. 13471 Before the House Comm. on the Census, 69th Cong., 2d Sess. (1927);

Apportionment of Representatives: Hearing on H.R. 130 Before the House Comm. on the

Census, 70th Cong., 1st Sess. (1928).

By the end of the 1920s, concern had arisen that a similar controversy could prevent

reapportionment following the 1930 census. See H.R. Rep. No. 70-2010, at 3 (1929).

Population estimates suggested that a House comprised of 535 members may have been required

to preserve the membership of every State following the 1930 census. Id. at 4. Anticipating the

controversy that would follow a proposal to increase the body to such a significant size,

Congress revisited the issue of permanently fixing the size of the House. See id.

Congress enacted permanent apportionment legislation as part of the Census Act of 1929.

Act of June 18, 1929, § 22, 46 Stat. 21, 26-27. The Act directed the President, following each

decennial census, to report to Congress the number of Representatives to which each State would

be entitled under an apportionment of the then existing number of Representatives (435)

according to several alternative apportionment methods. Id. § 22(a). If Congress did not enact a

8
Case 3:09-cv-00104-WAP-MPM Document 15-2 Filed 12/21/2009 Page 9 of 32

different apportionment law before the end of that session, each State would be entitled to the

number dictated by the method that had been used in the prior apportionment. Id. § 22(b).

In 1961, various bills were introduced and hearings held to consider increasing the size of

the House. See Increasing the Membership of the House of Representatives and Redistricting

Congressional Districts: Hearings on H.R. 841, 1178, 1183, 1998, 2531, 2704, 2718, 2739,

2768, 2770, 2783, 3012, 3176, 3414, 3725, 3804, 3890, 4068, 4609, 6431, 7355, 8075, 8498,

8616 and H. J. Res. 419 Before Subcomm. No. 3 of the House Comm. on the Judiciary, 87th

Cong., 1st Sess. 1-21 (1961). Reasons cited in support of an increase included the increased

workload of each Representative and the increased number of persons represented by each

member. Id. at 214. Reasons cited against an increase included a desire to maintain the orderly,

deliberative nature of the body. Id. at 215. These attempts to increase the size of the House

failed, and the number of Representatives has remained fixed at 435.2 See 2 U.S.C. § 2a(a).

STANDARD OF REVIEW

To survive a Rule 12(b)(6) motion to dismiss, “a complaint must contain sufficient

factual matter, accepted as true, to state a claim for relief that is plausible on its face.” Ashcroft

v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (quotations omitted). “A claim has facial plausibility

when the plaintiff pleads factual content that allows the court to draw the reasonable inference

that the defendant is liable for the misconduct alleged.” Id. In reviewing a Rule 12(b)(6)

motion, “the court accepts all well-pleaded facts as true, viewing them in the light most favorable

to the plaintiff.” In re Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir. 2007)

(quotations omitted).

2
The number of Representatives temporarily increased to 437 following the admission of
Alaska and Hawaii in 1959, but it reverted to 435 following the 1960 census. See Act of July 7,
1958, § 9, 72 Stat. 339, 345; Act of Mar. 18, 1959, § 8, 73 Stat. 4, 8.

9
Case 3:09-cv-00104-WAP-MPM Document 15-2 Filed 12/21/2009 Page 10 of 32

In reviewing a Rule 12(b)(1) motion to dismiss for lack of subject matter jurisdiction, the

court may consider the complaint alone, the complaint supplemented by undisputed facts

evidenced in the record, or the complaint supplemented by undisputed facts plus the court’s

resolution of disputed facts. Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001). “The

burden of proof for a Rule 12(b)(1) motion to dismiss is on the party asserting jurisdiction.

Accordingly, the plaintiff constantly bears the burden of proof that jurisdiction does in fact

exist.” Id. (citations omitted). Furthermore, “[w]hen a Rule 12(b)(1) motion is filed in

conjunction with other Rule 12 motions, the court should consider the Rule 12(b)(1)

jurisdictional attack before addressing any attack on the merits.” Id.

A party is entitled to summary judgment under Rule 56 “if the pleadings, the discovery

and disclosure materials on file, and any affidavits show that there is no genuine issue as to any

material fact and that the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.

56(c)(2); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). The court views all the

evidence and inferences drawn from that evidence in the light most favorable to the party

opposing the motion. Reid v. State Farm Mutual Auto Ins. Co., 784 F.2d 577, 578 (5th Cir.

1986). To avoid summary judgment, the non-moving party “may not rely merely on allegations

or denials in its own pleading” but must “set out specific facts showing a genuine issue for trial.”

Fed. R. Civ. P. 56(e)(2); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986).

ARGUMENT

I. PLAINTIFFS’ CLAIMS ARE UNTIMELY.

Plaintiffs challenge the constitutionality of the 1929 Act that fixed the size of the House

of Representatives at 435, as implemented by the January 2001 apportionment plan that followed

the 2000 decennial census. (See Compl. ¶ 1.) Instead of challenging that plan when it issued,

10
Case 3:09-cv-00104-WAP-MPM Document 15-2 Filed 12/21/2009 Page 11 of 32

however, Plaintiffs waited over eight years, and until the eve of the 2010 decennial census, to

bring their lawsuit. Their claims are barred by the statute of limitations and/or the equitable

doctrine of laches.

A. PLAINTIFFS’ CLAIMS ARE BARRED BY THE SIX-YEAR STATUTE OF

LIMITATIONS AND SUBJECT TO DISMISSAL UNDER RULE 12(b)(1).

With one exception not applicable here, “every civil action commenced against the

United States shall be barred unless the complaint is filed within six years after the right of

action first accrues.” 28 U.S.C. § 2401(a). Under established principles of sovereign immunity,

the United States is immune from suit unless it consents, and the terms of its consent

circumscribe this Court’s jurisdiction. United States v. Dalm, 494 U.S. 596, 608 (1990). The

six-year statute of limitations set forth at 28 U.S.C. § 2401(a) “is one such term of consent, and

failure to sue the United States within the limitations period is not merely a waivable defense. It

operates to deprive federal courts of jurisdiction.” Dunn-McCampbell Royalty Interest, Inc. v.

Nat’l Park Serv., 112 F.3d 1283, 1287 (5th Cir. 1997); see also W. Va. Highlands Conservency v.

Johnson, 540 F. Supp. 2d 125, 142-43 (D.D.C. 2008) (28 U.S.C. § 2401(a) is jurisdictional).

Because the statute of limitations is jurisdictional, Plaintiffs bear the burden of proving the

timeliness of their claims. Figueroa v. United States, 57 Fed. Cl. 488, 493 (Fed. Cl. 2003), aff’d,

466 F.3d 1023 (Fed. Cir. 2006).

On January 4, 2001, President Clinton transmitted a statement to the Speaker of the U.S.

House of Representatives that provided “the apportionment population of each State as of April

1, 2000,” and “the number of Representatives to which each State would be entitled” under 2

U.S.C. § 2a(a). (Ex. A, Decl. of Louisa F. Miller (“Miller Decl.”), Attach. 2.) According to that

statement, the States in which the five Plaintiffs reside were entitled to the following numbers of

Representatives: Delaware (1), Mississippi (4), Montana (1), South Dakota (1), Utah (3). (Id.)

11
Case 3:09-cv-00104-WAP-MPM Document 15-2 Filed 12/21/2009 Page 12 of 32

The Clerk of the House then informed each State, pursuant to 2 U.S.C. § 2a(b), that it was

entitled to the number of Representatives reflected in the President’s statement. (Compl. ¶ 15.)

The number of Representatives to which each State is entitled has not changed since January 4,

2001. See 2 U.S.C. § 2a(a) (authorizing reapportionment only once every fifth Congress).

For purposes of the statute of limitations, then, this cause of action began to accrue on

January 4, 2001. The six-year statute of limitations set forth at 28 U.S.C. § 2401(a) therefore

expired on January 4, 2007, nearly three years before Plaintiffs filed this lawsuit. Their claims

are barred.

B. PLAINTIFFS’ CLAIMS ARE BARRED UNDER THE EQUITABLE DOCTRINE OF

LACHES AND SUBJECT TO DISMISSAL UNDER RULE 12(b)(6).

Laches may be invoked to bar litigation if the defendant has shown “a delay in asserting a

right or claim,” “that the delay was not excusable,” and “that there was undue prejudice to the

party against whom the claim is asserted.” Envtl. Def. Fund, Inc. v. Alexander, 614 F.2d 474,

478 (5th Cir. 1980). “The defense is not restricted to cases in which only private law claims are

asserted; it is also applicable to complaints based on constitutional claims[.]” Id. at 480.

“Whether laches bars an action in a given case depends upon the circumstances of that case and

is a question primarily addressed to the discretion of the trial court.” Id. at 478.3

Courts routinely hold that belated challenges to redistricting and reapportionment plans

are equitably barred. White v. Daniel, 909 F.2d 99, 102-04 (4th Cir. 1990); Simkins v. Gressette,

631 F.2d 287, 295-96 (4th Cir. 1980); Md. Citizens for a Representative Gov’t v. Governor of

Md., 429 F.2d 606, 608-12 (4th Cir. 1970); Ariz. Minority Coal. for Fair Redistricting v. Ariz.

Indep. Redistricting Comm’n, 366 F. Supp. 2d 887, 907-09 (D. Ariz. 2005); Fouts v. Harris, 88

3
“[T]he defense[] of … laches may be asserted by motion to dismiss for failure to state a
claim – provided that the complaint shows affirmatively that the claim is barred.” Herron v.
Herron, 255 F.2d 589, 593 (5th Cir. 1958).

12
Case 3:09-cv-00104-WAP-MPM Document 15-2 Filed 12/21/2009 Page 13 of 32

F. Supp. 2d 1351, 1353-55 (S.D. Fla. 1999), aff’d sub nom. Chandler v. Harris, 529 U.S. 1084

(2000); Maxwell v. Foster, No. Civ.A.98-1378, 1999 WL 33507675 (W.D. La. Nov. 24, 1999);

MacGovern v. Connolly, 637 F. Supp. 111, 115-16 (D. Mass. 1986). Indeed, although courts

generally have discretion to apply the doctrine of laches, at least one federal Court of Appeals

has held that a district court abused its discretion when it failed to apply the doctrine of laches to

a belated challenge to a county redistricting plan. White, 909 F.2d at 104-05.

The factual circumstances of Maryland Citizens for a Representative Government v.

Governor of Maryland, 429 F.2d at 608-12, are nearly identical in all relevant respects to those

presented here. The plaintiffs in Maryland Citizens argued that the 1965 apportionment of the

Maryland General Assembly was unconstitutional. Id. at 607-08. They did not file a lawsuit

challenging that plan, however, until thirteen weeks prior to the candidate filing deadline for the

1970 elections. Id. at 609. The court explained that, even if plaintiffs’ lawsuit were successful,

neither the court nor the state legislature could have developed a new apportionment plan until

the eve of the candidate filing deadline for the 1970 elections. Id. at 610. “Such a result would

necessarily impose great disruption upon potential candidates, the electorate and the elective

process.” Id. The court also noted the “large potential for disruption in reapportioning with

undue frequency,” explaining that a reapportionment would again be required following the 1970

decennial census. Id. The Fourth Circuit therefore affirmed the district court’s conclusion that

injunctive relief was unavailable, explaining that the plaintiffs could file a lawsuit following the

upcoming elections if the perceived deficiencies remained. Id. at 611-12.

As discussed above, the apportionment plan challenged in this case was effected in

January 2001, when President Clinton transmitted a statement to the Speaker of the U.S. House

of Representatives that provided “the apportionment population of each State as of April 1,

13
Case 3:09-cv-00104-WAP-MPM Document 15-2 Filed 12/21/2009 Page 14 of 32

2000,” and “the number of Representatives to which each State would be entitled” under 2

U.S.C. § 2a(a). (Ex. A (Miller Decl.), Attach. 2.) The public transmittal from the President to

the Speaker contained all of the information upon which Plaintiffs now base their Complaint –

the apportionment population of the nation, the apportionment population of each State, and the

number of Representatives apportioned to each State. (See id.)

Although the reapportionment of the House every ten years is a “highly visible project

which could not have escaped public attention,” Save Our Wetlands, Inc. (SOWL) v. U.S. Army

Corps of Eng’rs, 549 F.2d 1021, 1027 (5th Cir. 1977) (applying doctrine of laches), Plaintiffs

waited more than eight years to challenge that reapportionment. They allowed four

Congressional election cycles to pass and then allowed nearly a full year of the fifth and final

election cycle to pass before they filed this lawsuit. The 2010 mid-term Congressional election

process is now underway. Significant election deadlines in some States have already passed.

The State of Illinois, for example, will hold the primary for its nineteen Congressional districts

on February 2, 2010. (Ex. B, Illinois State Board of Elections, Election and Campaign Finance

Calendar: 2010, at 16.) The filing period for Illinois Congressional major party candidates

opened on October 26, 2009, and closed on November 2, 2009, less than seven weeks after

Plaintiffs filed this lawsuit. (Id. at 3.) The proximity of the filing of this lawsuit to relevant

candidate filing deadlines is closer even than in Maryland Citizens, where the Court of Appeals

held that a lawsuit filed only thirteen weeks before the candidate filing deadline was barred. 429

F.2d at 609; see also Ariz. Minority Coal. for Fair Redistricting, 366 F. Supp. 2d at 909 (lawsuit

filed “just weeks” before critical election deadlines was barred); McGovern, 637 F. Supp. at 115

(lawsuit filed less than one month before nominations were due was barred). Election deadlines

14
Case 3:09-cv-00104-WAP-MPM Document 15-2 Filed 12/21/2009 Page 15 of 32

in other States are also imminent. (See, e.g., Ex. C, Texas Secretary of State, 2010 Primary

Election Calendar, at 4 (noting candidate filing deadline of January 4, 2010).)4

Furthermore, the disruption to the political process that would result from the remedy

Plaintiffs seek is many times greater than that which would have resulted in other redistricting

and reapportionment cases in which laches has been applied. A victory for the plaintiffs in White

v. Daniel, for example, would have required redistricting five board districts in one county. See

909 F.2d at 100. A victory for Plaintiffs here would require the creation of up to 1,326

Congressional districts in 50 States, the reopening of candidate filing deadlines in some or all

States, and, likely, new primaries in some or all States. “[I]t does not take a fertile imagination

to picture the administrative havoc a midstream reapportionment would wreak.” MacGovern,

637 F. Supp. at 115.

Finally, Plaintiffs filed this lawsuit less than seven months before the 2010 decennial

census date, which will lead to another nationwide reapportionment and redistricting in every

State. See 2 U.S.C. § 2a; 13 U.S.C. § 141(a). A decision in Plaintiffs’ favor would therefore

result in two reapportionments in the span of one to two years. “[T]wo reapportionments within

a short period of two years would greatly prejudice the [nation] and its citizens by creating

instability and dislocation in the electoral system and by imposing great financial and logistical

burdens.” White, 909 F.2d at 104; see also Fouts, 88 F. Supp. 2d at 1354 (accepting defendants’

argument that “requiring redistricting now, before the 2000 census[,] will result in two

4
This Court may take judicial notice of the state election schedules cited in this paragraph,
which were obtained from websites maintained by the Illinois State Board of Elections,
http://www.elections.state.il.us/DocDisplay.aspx?Doc=downloads/electioninformation/pdf/2010
calendar.pdf&Title=2010 election and campaign finance calendar, and the Texas Secretary of
State, http://www.sos.state.tx.us/elections/laws/2010primary.shtml. See Kitty Hawk Aircargo,
Inc. v. Chao, 418 F.3d 453, 457 (5th Cir. 2005) (taking judicial notice of document published on
government website).

15
Case 3:09-cv-00104-WAP-MPM Document 15-2 Filed 12/21/2009 Page 16 of 32

redistrictings within a two year period, with resulting voter confusion, instability, dislocation,

and financial and logistical burden on the state”). Cf. Reynolds v. Sims, 377 U.S. 533, 583

(1964) (“Limitations on the frequency of reapportionment are justified by the need for stability

and continuity in the organization of the legislative system[.]”). “The timing of this action with

respect to the normal decennial reapportionment [therefore] weighs heavily against granting

relief.” MacGovern, 637 F. Supp. at 115.

This lawsuit could have been filed in January 2001. If Plaintiffs had done so, their

apportionment plan could have applied to the elections of 2002, 2004, 2006, 2008, and 2010

without the level of disruption to the electoral process that would be occasioned by the remedy

Plaintiffs now urge. “When the massive disruption to the political process of the [nation] is

weighed against the harm to plaintiffs of suffering through one more election based on an

allegedly invalid [apportionment] scheme, equity requires that [this Court] deny relief.” Id. at

116. Because Plaintiffs sat on their claims through four election cycles, through nearly a year of

the fifth and final election cycle for which the 2001 apportionment plan will be relevant, and

until the eve of the next decennial census, Plaintiffs’ claims are barred by the equitable doctrine

of laches.5

5
Although some courts have declined to apply laches in the context of challenges to
redistricting or reapportionment plans, those cases are distinguishable. In Jeffers v. Clinton, for
example, the court relied heavily on the fact that the lawsuit was filed a full 14 months before the
candidate filing deadline and only two years after the Supreme Court had issued a “pole star”
decision in the area. 730 F. Supp. 196, 201-03 (E.D. Ark. 1989), aff’d sub nom. Clinton v.
Jeffers, 498 U.S. 1019 (1991). The proximity of the complaint to candidate filing deadlines is
much closer in this case (7 weeks), and the Supreme Court has issued no recent “pole star”
decision governing the issues presented here.

16
Case 3:09-cv-00104-WAP-MPM Document 15-2 Filed 12/21/2009 Page 17 of 32

II. PLAINTIFFS HAVE NEITHER PLED A CLAIM WITH RESPECT TO THE 2011
CONGRESSIONAL REAPPORTIONMENT, NOR DEMONSTRATED THAT
THEY WOULD HAVE STANDING TO ASSERT SUCH A CLAIM.

To the extent Plaintiffs also seek to challenge the Congressional apportionment plan that

will follow the 2010 decennial census and control the 2012 through 2020 Congressional

elections, they have failed to plead a single factual allegation either in support of the merits of

such a claim or in support of their standing to assert such a claim.

As discussed above, to survive a Rule 12(b)(6) motion to dismiss, “a complaint must

contain sufficient factual matter, accepted as true, to state a claim for relief that is plausible on its

face.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (quotations omitted). Furthermore, to

survive a Rule 12(b)(1) motion to dismiss for lack of subject matter jurisdiction, “the burden is

on the plaintiff to allege facts sufficient to support standing.” Ward v. Santa Fe Indep. Sch.

Dist., 393 F.3d 599, 607 (5th Cir. 2004). To establish standing, a plaintiff must demonstrate,

inter alia, that he has suffered an “injury in fact” – “an invasion of a legally protected interest”

that is both “concrete and particularized” and “actual or imminent, not ‘conjectural’ or

‘hypothetical.’” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992).

Plaintiffs have failed to allege such facts here. Plaintiffs’ factual allegations relate solely

to the 2001 Congressional apportionment plan, which was based on the results of the 2000

decennial census and controls the Congressional elections of 2002 through 2010. (See Compl.

¶¶ 21-45.) Following the 2010 decennial census, a new apportionment plan will control the next

five Congressional elections. See 2 U.S.C. § 2a. The population disparities among interstate

districts, which are the basis of Plaintiffs’ Complaint, will change in the upcoming

reapportionment. Districts that are more populous than the “ideal” district in the current

apportionment plan may be less populous than the ideal district in the 2011 reapportionment.

17
Case 3:09-cv-00104-WAP-MPM Document 15-2 Filed 12/21/2009 Page 18 of 32

(See, e.g., Ex. D at 1 (Montana’s district(s) 24.25% less populous than ideal following 1980

reapportionment but 40.38% more populous than ideal following 1990 reapportionment).6) At

the very least, the extent to which every States’ districts are more or less populous than the ideal

district will certainly change – in some cases, significantly – in the upcoming reapportionment.

(See, e.g., id. (South Dakota’s district 32.92% more populous than ideal following 1980

reapportionment, 22.28% more populous than ideal following 1990 reapportionment, and

16.99% more populous than ideal following 2000 reapportionment).)

Although Plaintiffs purport to seek relief related to the 2011 apportionment plan (see

Compl. at 12 ¶ 6), they have failed to plead a single factual allegation to support such a claim.

They have not, for example, alleged that the districts in which they reside will be more populous

than the ideal district following the 2011 reapportionment. (See generally id.) As such, they

have failed to allege that the 2011 apportionment plan will injure them. They have therefore

failed to meet their burden to establish that they have standing to pursue this claim, see Lujan,

504 U.S. at 560, and have failed to allege facts that, if true, would state a claim on the merits, see

Iqbal, 129 S. Ct. at 1949. Any claim relating to the 2011 apportionment, to the extent Plaintiffs

intend to assert one, is subject to dismissal under Rule 12(b)(1) and Rule 12(b)(6).

6
For purposes of this brief, we calculate population disparities in the same manner as
Plaintiffs. Plaintiffs first calculated the population of the “ideal” district by dividing the nation’s
total apportionment population by the number of Congressional districts. (See Compl. ¶ 21.)
They then calculated the percent deviation from the “ideal” district for each State’s
Congressional district(s) as follows:
% Deviation from Ideal = Ideal District Size – District Size for [State]
Ideal District Size
(See id. ¶¶ 21-24.) Exhibit D provides each State’s percent deviation from ideal for every
decennial reapportionment from 1790 to 2000.

18
Case 3:09-cv-00104-WAP-MPM Document 15-2 Filed 12/21/2009 Page 19 of 32

III. PLAINTIFFS HAVE FAILED TO STATE A CLAIM FOR RELIEF.7

Plaintiffs’ argument that the Constitution requires a dramatic expansion of the House of

Representatives is inconsistent with the text of the Constitution, the case law, the background of

the constitutional apportionment provisions, and the history of their implementation.

A. CONGRESS HAS VERY BROAD DISCRETION TO FIX THE SIZE OF THE HOUSE OF
REPRESENTATIVES.

The constitutional provision Plaintiffs challenge – the requirement that Representatives

be apportioned to the States “according to their respective numbers” – imposes three limitations

on Congress’s apportionment discretion:

The general admonition in Article I, § 2, that Representatives shall be apportioned among

the several States “according to their respective Numbers” is constrained by three
requirements. The number of Representatives shall not exceed one for every 30,000
persons; each State shall have at least one Representative; and district boundaries may
not cross state lines.

U.S. Dep’t of Commerce v. Montana, 503 U.S. 442, 447-48 (1992). The 2001 Congressional

apportionment plan is consistent with these requirements. That plan creates no district smaller

than 30,000 inhabitants, no district crosses State lines, every State has at least one

Representative, and the remaining 385 Representatives are apportioned by population according

to the mathematical method of “equal proportions.” (See Ex. A (Miller Decl.) ¶ 5 & Attach. 1 at

1.) With respect to the size of the House of Representatives, the Constitution requires no more.

In the only similar challenge to the size of the House of Representatives, the U.S. District

Court for the Southern District of New York readily dismissed the plaintiff’s argument that the

7
While this case is subject to dismissal under Rule 12(b)(6) for failure to state a claim,
Defendants have supported their argument with materials beyond the pleadings. (See Exs. A &
D.) If the Court relies upon these materials, Defendants respectfully request that the Court
instead grant judgment in Defendants’ favor pursuant to Rule 56.

19
Case 3:09-cv-00104-WAP-MPM Document 15-2 Filed 12/21/2009 Page 20 of 32

House of Representatives must consist of roughly 7,000 members in order to ensure population

equality among interstate Congressional districts:

The inequality of which [plaintiff] complains inheres in our constitutional structure. So

long as the Constitution requires apportionment of seats in the House of Representatives
among the states, inequalities of voting power of the kind mentioned above are inevitable
in view of population differences; the question is a matter of degree. [Plaintiff] argues
that this Court should order the Congress to ameliorate inequality of voting power within
our constitutional framework by creating more seats in the national legislature. He cites
no decision, and this Court is aware of no decision, that has ordered such a remedy. The
decision to limit the size of the House of Representatives to 435 members is expressly
committed to the discretion of Congress.

Wendelken v. Bureau of the Census, 582 F. Supp. 342, 343 (S.D.N.Y. 1983) (emphasis in

original), aff’d, 742 F.2d 1437 (2d Cir. 1984). Plaintiffs can point to no decision to the contrary.

Supreme Court case law strongly supports the result reached in Wendelken. In United

States Department of Commerce v. Montana, the State of Montana challenged the 1991

Congressional apportionment plan on the basis that the mathematical apportionment method

utilized by Congress created unnecessary population disparities among interstate Congressional

districts. 503 U.S. at 444-46. Montana argued that the mathematical method it advocated

(“harmonic mean”) would have achieved a more equivalent distribution of the 435 Congressional

seats than the method Congress has utilized since 1941 (“equal proportions”). Id. at 460.

The Court rejected Montana’s argument. Id. at 461-66. Consistent with the district

court’s reasoning in Wendelken, the Supreme Court explained that constraints imposed by the

Constitution itself make the goal of equal representation among Congressional districts in

different States “illusory”:

The constitutional guarantee of a minimum of one Representative for each State

inexorably compels a significant departure from the ideal. In Alaska, Vermont, and
Wyoming, where the statewide districts are less populous than the ideal district, every
vote is more valuable than the national average. Moreover, the need to allocate a fixed
number of indivisible Representatives among 50 States of varying populations makes it
virtually impossible to have the same size district in any pair of States, let alone in all 50.

20
Case 3:09-cv-00104-WAP-MPM Document 15-2 Filed 12/21/2009 Page 21 of 32

Accordingly, although “common sense” supports a test requiring “a good-faith effort to

achieve precise mathematical equality” within each State, the constraints imposed by
Article I, § 2, itself make that goal illusory for the Nation as a whole.

Id. at 463 (emphasis in original, citations omitted). The Court upheld the 1990 Congressional

apportionment plan despite the inequalities of which the plaintiffs complained, noting the broad

discretion the Constitution confers upon Congress to apportion Representatives. See id. at 464;

see also Wisconsin v. City of New York, 517 U.S. 1, 15 (1996) (Congress has “wide discretion

over apportionment decisions and the conduct of the census.”).

Plaintiffs’ argument that a requirement of population equality dictates the minimum size

of the House has far less force even than Montana’s unsuccessful argument that it dictates an

apportionment method. James Madison said that “[n]o political problem is less susceptible of a

precise solution, than that which relates to the number most convenient for a representative

legislature[.]” See James Madison, The Federalist No. 55, in The Federalist, 372, 373 (Jacob E.

Cooke ed., 1961). Even more so than Congress’s selection of an apportionment method, a

mathematical formula cannot dictate the solution to the complex “political problem” that is the

size of the House; to the contrary, it has long been recognized that the size of the House is a

determination that will be based on a variety of other considerations:

Nothing can be more fallacious than to found our political calculations on arithmetical
principles. Sixty or seventy men may be more properly trusted with a given degree of
power than six or seven. But it does not follow that six or seven hundred would be
proportionably a better depositary. And if we carry on the supposition to six or seven
thousand, the whole reasoning ought to be reversed. The truth is, that in all cases a
certain number at least seems to be necessary to secure the benefits of free consultation
and discussion, and to guard against too easy a combination for improper purposes: As,
on the other hand, the number ought at most to be kept within a certain limit, in order to
avoid the confusion and intemperance of a multitude. In all very numerous assemblies,
of whatever characters composed, passion never fails to wrest the scepter from reason.
Had every Athenian citizen been a Socrates; every Athenian assembly would still have
been a mob.

21
Case 3:09-cv-00104-WAP-MPM Document 15-2 Filed 12/21/2009 Page 22 of 32

Id. at 374; see also James Madison, The Federalist No. 58, in The Federalist, 391, 396 (Jacob E.

Cooke ed., 1961) (“Experience will forever admonish them that on the contrary, after securing a

sufficient number for the purposes of safety, of local information, and of diffusive sympathy with

the whole society, they will counteract their own views by every addition to their

representatives.”) (emphasis in original).

Consistent with these principles, the Constitution does not dictate a “precise solution,”

but instead sets a minimum (each State must have one Representative) and a maximum (no State

may have more than one Representative per 30,000 inhabitants), and grants Congress the

discretion to fix a number within that range. U.S. Const. art. I, § 2, cl. 3; Whelan v. Cuomo, 415

F. Supp. 251, 256 (E.D.N.Y. 1976) (“Congress was given considerable flexibility in determining

the actual number of representatives so long as the total did not exceed one representative for

every 30,000 inhabitants.”); see also Prigg v. Pennsylvania, 41 U.S. 539, 619 (1842) (that

Constitution grants apportionment power to Congress follows “irresistibly” from express

delegation of power to conduct census). Applying a standard of population equality to fix a

minimum number of Representatives several times larger than the number set by Congress

would eviscerate the discretion the Constitution vests in Congress to consider these various

complexities and to fix an appropriate number within the range expressly set forth in the

Constitution.

Furthermore, applying a standard of population equality to the determination of the

number of Representatives does not lend itself to any reasonable limitation. Based on the results

of each decennial census, a mathematically-determined number of Representatives would

maximize population equality among interstate Congressional districts. Plaintiffs suggest that a

1,761-member House would provide a sufficient level of equivalence. (See Compl. ¶¶ 38, 41.)

22
Case 3:09-cv-00104-WAP-MPM Document 15-2 Filed 12/21/2009 Page 23 of 32

If equality among interstate districts overrides Congress’s judgment that 435 Representatives is

an appropriate number, however, there is no basis for selecting 1,761 over a larger number that

would achieve even greater population equality. (Compare Ex. D at 1 (9,356-member House

could be arranged to result in maximum deviation of 4.81%) with Compl. ¶ 39 (Plaintiffs’ 1,761-

member House results in maximum deviation of 9.92%8).) By selecting 1,761, Plaintiffs appear

to have made a policy determination that a 1,761-member House is large enough, despite the

population disparities that would persist in such a plan and that could be remedied by expanding

the House beyond that number. The Constitution, however, does not vest discretion in Plaintiffs

or this Court to make that policy determination. It vests that discretion in Congress.

After fourteen decades of debate regarding the size of the House of Representatives, and

after repeated expansion of the House in those fourteen decades, Congress determined that the

membership of the House should be fixed at 435 following every decennial census. It fixed the

size in part to ensure that political deadlock did not again obstruct a decennial reapportionment,

see Franklin v. Massachusetts, 505 U.S. 788, 791-92 (1992); S. Rep. No. 71-2, at 2-3 (1929)

(“The need for legislation of this type is confessed by the record of the past nine years during

which Congress has refused to translate the 1920 census into a new apportionment . . . . As a

result, great American constituencies have been robbed of their rightful share of

representation[.]”), and in part because of the concern that the House was becoming too large to

be effective and would continue to expand if the number were not presumptively fixed prior to

each decennial census return, see H.R. Rep. No. 70-2010, at 4 (1929) (noting “the amount of

opposition that might naturally rise up against a proposal that would increase the membership

8
The maximum deviation is the sum of the percent deviation from ideal for the smallest
Congressional district and the percent deviation from ideal for the largest Congressional district.
For the 2001 apportionment plan, the maximum deviation – the disparity of which Plaintiffs
complain here – was 63.38%. (Compl. ¶¶ 24-30.)

23
Case 3:09-cv-00104-WAP-MPM Document 15-2 Filed 12/21/2009 Page 24 of 32

from 435 to 535”); S. Rep. No. 70-1446, at 9 (1929) (“The committee agrees that the limitation

[435] is sustained by every consideration of effectual parliamentary government.”). Although

hearings were held in the early 1960s to assess whether the number should be increased, see

Hearings on H.R. 841, 1178, 1183, 1998, 2531, 2704, 2718, 2739, 2768, 2770, 2783, 3012,

3176, 3414, 3725, 3804, 3890, 4068, 4609, 6431, 7355, 8075, 8498, 8616 and H. J. Res. 419

Before Subcomm. No. 3 of the House Comm. on the Judiciary, 87th Cong. 1-21 (1961), Congress

retained the 435-member House. Because the Constitution does not require otherwise,

Congress’s good-faith determination that the House of Representatives should consist of 435

members is entitled to substantial deference.

In sum, by fixing the number of Representatives at 435, apportioning at least one

Representative to each State, and apportioning the remaining Representatives according to a

method the Supreme Court has held to be consistent with the Constitution, Montana, 503 U.S. at

463-64, Congress effected a constitutionally permissible apportionment plan in 2001.

B. THE CASES UPON WHICH PLAINTIFFS RELY ARE INAPPOSITE.

Plaintiffs incorrectly cite Karcher v. Daggett, 462 U.S. 725 (1983), and related cases for

the proposition that those decisions impose limitations upon Congressional apportionment

determinations. (Compl. ¶ 17.)

Karcher is an application of the intrastate redistricting standard set forth in Wesberry v.

Sanders, 376 U.S. 1 (1964). At issue in Wesberry was the constitutional requirement that

Representatives be chosen “by the People of the several States.” Id. at 7-8. In consideration of

that provision, the Supreme Court imposed a requirement that the States achieve population

equality, as nearly as practicable, when drawing the Congressional districts within their States.

Id.

24
Case 3:09-cv-00104-WAP-MPM Document 15-2 Filed 12/21/2009 Page 25 of 32

The Supreme Court, however, has already declined to extend the Wesberry standard to

the separate constitutional requirement – the one at issue here – governing Congress’s

apportionment of Representatives among the States. Montana, 503 U.S. at 464. In Montana, the

Court explained that “[r]espect for a coordinate branch of Government raises special concerns

not present in our prior cases.” Id. at 459. It further noted that, while population equality is an

achievable goal for intrastate redistricting, the Constitution makes the goal of population equality

among interstate districts “illusory.” Id. at 463-64 (“[T]he need to allocate a fixed number of

indivisible Representatives among 50 States of varying populations makes it virtually impossible

to have the same size district in any pair of States, let alone in all 50.”). As such, the Court held

that “[t]he constitutional framework that generated the need for compromise in the

apportionment process must also delegate to Congress a measure of discretion that is broader

than that accorded to the States in the much easier task of determining district sizes within state

borders.” Id. at 464. The standard of population equality set forth in Wesberry as applicable to

intrastate redistricting therefore does not extend to Congressional apportionment determinations.

See id.; see also Wisconsin, 517 U.S. at 18 (noting inapplicability of Wesberry to Congressional

apportionment determinations and holding Wesberry likewise inapplicable to Congressional

census determinations).

Plaintiffs’ argument that a standard of population equality overrides Congress’s judgment

as to the appropriate size of the House of Representatives is unsupported by any case law.

C. THE BACKGROUND OF THE CONSTITUTION’S APPORTIONMENT PROVISIONS

AND THE HISTORY OF THEIR IMPLEMENTATION CONFIRM THE VALIDITY OF
THE CURRENT APPORTIONMENT PLAN.

The breadth of Congress’s discretion to fix the size of the House of Representatives is

confirmed by the background of the apportionment provisions of Article I, by the actions of the

25
Case 3:09-cv-00104-WAP-MPM Document 15-2 Filed 12/21/2009 Page 26 of 32

first several Congresses, by the Fourteenth Amendment, and by two hundred years of experience

in the implementation of the Constitution’s apportionment provisions.

1. Constitutional Background

The Framers’ debate about the size of the initial House – and whether and how to fix the

size of future Congresses – reflected the tension between those who believed the body must be

numerous enough to ensure effective representation and those who believed the body must not be

too numerous to be efficient. Compare 1 Farrand at 568 (expressing concern that number

“would not possess enough of the confidence of the people, and wd. be too sparsely taken from

the people, to bring with them all the local information which would be frequently wanted”) with

id. at 569 (“Mr. Elsworth urged the objection of expence, & that the greater the number, the

more slowly would the business proceed[.]”). Nothing in these debates suggests that the Framers

intended the size of the House to be fixed at the number that would achieve a particular level of

population equality among interstate districts.

To the contrary, the Framers were aware that the representational scheme they were

creating would lead to disparities among interstate Congressional districts. In considering

whether direct taxes should be based on the number of Representatives allocated to each State,

rather than on the number of inhabitants in each State, concerns were raised that basing taxation

on the number of Representatives would result in inaccuracies in taxation: “Even if

[Representatives] were proportioned as nearly as possible to [inhabitants], it would be a very

inaccurate rule [for taxation] – A State might have one Representative only, that had inhabitants

enough for 1 ½ or more, if fractions could be applied[.]” 2 Farrand at 358 (emphasis added); see

also id. at 350 (“The number of Reps. did not admit of a proportion exact enough for a rule of

taxation.”). The Framers’ recognition that the representational scheme they were creating meant

26
Case 3:09-cv-00104-WAP-MPM Document 15-2 Filed 12/21/2009 Page 27 of 32

that States with one Representative may have enough inhabitants for “1 ½ or more” is

inconsistent with Plaintiffs’ argument that Montana, which has one Representative but enough

inhabitants for 1.4 (see Compl. ¶¶ 23, 29), is unconstitutionally underrepresented.

Furthermore, the Framers themselves selected a smaller initial House over the potential

for more equivalent interstate districts. Near the end of the debates, several proposals were

considered to increase substantially the initial allocation of 65 Representatives. 1 Farrand at

568-69 (proposal to double the number); 2 Farrand at 553-54, 612 (proposal to increase the

number by half). A significant increase in the number of Representatives would, of course, have

allowed for a finer division of Representatives among the States according to their estimated

populations. The Framers rejected those amendments, at least in part because certain members

viewed the resulting number as inefficient and expensive. 1 Farrand at 569-70. They adopted

the 65-member initial apportionment despite the population disparities among interstate districts

that flowed from that plan.9 (See Ex. D at 6 (reflecting a maximum deviation of approximately

71% in the Framers’ apportionment of Representatives).)

The Framers understood that a similar process of deliberation and compromise would

characterize future Congressional determinations regarding the size of the House. See, e.g.,

James Madison, The Federalist No. 58, in The Federalist, 391, 394 (Jacob E. Cooke ed., 1961)

(“The large States . . . will have nothing to do but to make reapportionments and augmentations

mutually conditions of each other; and the senators from all the most growing States will be

bound to contend for the latter, by the interest which their States will feel in the former. . . .

[A]fter securing a sufficient number for the purposes of safety, of local information, and of

9
The 65-member initial apportionment was based on population estimates rather than an
actual enumeration. As a result, the population disparities in the constitutional apportionment
(see Ex. D at 6), in contrast to those for every other apportionment, are only estimates.

27
Case 3:09-cv-00104-WAP-MPM Document 15-2 Filed 12/21/2009 Page 28 of 32

diffusive sympathy with the whole society, they will counteract their own views by every addition

to their representatives.”) (emphasis in original). Cf. Montana, 503 U.S. at 464 (recognizing that

same “spirit of compromise” that motivated original allocation of Representatives characterizes

Congressional apportionment determinations today).

Plaintiffs argue that, when fixing the number of Representatives, Congress may not

engage in the same process of deliberation and compromise as the Framers. They argue that

Congress must instead accept a House that is double or quadruple the size that resulted from its

deliberation and compromise, all in the name of an arbitrarily-selected standard of population

equality that even the Framers did not achieve in the initial allocation. Their argument is

mandated by neither the letter nor the spirit of the Constitution.

2. Congressional Implementation of Apportionment Provisions

“[A] critical tool of constitutional interpretation” involves examining the understanding

of constitutional provisions in the period shortly following the ratification. Dist. of Columbia v.

Heller, 128 S. Ct. 2783, 2805 (2008). In particular, “the interpretations of the Constitution by

the First Congress are persuasive.” Franklin, 505 U.S. at 803. Furthermore, in the context of

challenges to Congressional apportionment plans, a long history of acceptance by the States and

the nation of the challenged apportionment procedures supports a conclusion that Congress had

ample power to enact those procedures. Montana, 503 U.S. at 465-66 (“For a half century the

results of that [apportionment] method have been accepted by the States and the nation. That

history supports our conclusion that Congress had ample power to enact the statutory procedure

in 1941 and to apply the method of equal proportions after the 1990 census.”).

Congress’s implementation of the apportionment provisions of the Constitution shortly

after, and in the two centuries since, the ratification of the Constitution supports the conclusion

28
Case 3:09-cv-00104-WAP-MPM Document 15-2 Filed 12/21/2009 Page 29 of 32

that the 2001 apportionment plan is lawful. Population disparities of similar magnitude to those

of which Plaintiffs complain now have existed since the nation’s founding. Indeed, the

apportionment plan that followed the first decennial census created a maximum deviation larger

than that created by the 2001 apportionment plan. In this early apportionment plan, Delaware’s

district was 61.28% more populous than the ideal district, and New York’s districts were 3.71%

less populous than the ideal district. (See Ex. D at 6.) The maximum deviation in this first

reapportionment was therefore 64.99% (see id.), a number greater than the 63.38% disparity of

which Plaintiffs now complain (Compl. ¶ 30). This early Congress’s adoption of a number that

created population disparities among interstate districts greater than those that exist today

supports the conclusion that the current plan is permissible. Cf. Franklin, 505 U.S. at 803

(“[T]he interpretations of the Constitution by the First Congress are persuasive.”).

The apportionment plans following nearly every decennial census since that time include

comparable – and in many cases, greater – population disparities among interstate Congressional

districts. (See Ex. D at 1-6.) For over two centuries, Congress’s broad discretion to fix the size

of the House at the number it deems appropriate, despite population disparities among interstate

districts that inevitably flow from that number, “ha[s] been accepted by the States and the

nation.” Montana, 503 U.S. at 465-66. That 220-year history further supports the conclusion

that the 2001 apportionment plan is consistent with the Constitution. Id. at 466.

3. The Fourteenth Amendment

The Fourteenth Amendment was ratified in 1868. Cong. Globe, 40th Cong., 2nd Sess.

4295-96 (1968). The relevant language of Section 2 of the Amendment reiterates verbatim the

relevant language of Article I, Section 2, Clause 3 of the Constitution:

29
Case 3:09-cv-00104-WAP-MPM Document 15-2 Filed 12/21/2009 Page 30 of 32

Representatives shall be apportioned among the several States according to their

respective numbers, counting the whole number of persons in each State, excluding
Indians not taxed.

U.S. Const. amend. XIV, § 2 (emphasis added to relevant language).

In the eight decennial reapportionments that preceded the adoption of the Fourteenth

Amendment, the maximum deviations were, in many cases, more significant than the maximum

deviation in the current plan. (Compare Ex. D at 4-6 (64.99% (1790); 82.05% (1800); 15.44%

(1810); 81.22% (1820); 55.67% (1830); 49.32% (1840); 64.17% (1850); 67.87% (1860) with id.

at 1 (63.38% (2000)).) In light of this eight-decade apportionment history, the incorporation of

the same apportionment language into the Fourteenth Amendment in 1868 is a ratification of the

flexibility this language was understood to confer upon Congress to fix the size of the House of

Representatives. Cf. Lorillard v. Pons, 434 U.S. 575, 580 (1978) (“Congress is presumed to be

aware of an administrative or judicial interpretation of a statute and to adopt that interpretation

when it re-enacts a statute without change.”).

* * *

The size of the House of Representatives is an issue that has been subject to substantial

debate in our nation’s 220-year history. Because the Constitution vests very broad discretion in

Congress to fix the size of the House, however, this debate is one that must occur in Congress,

not this Court. In the challenged apportionment plan, no district is smaller than 30,000

inhabitants, no district crosses State lines, every State has been apportioned at least one

Representative, and the remaining 385 Representatives have been apportioned by population

according to a method approved by the Supreme Court. The Constitution requires no more.

30
Case 3:09-cv-00104-WAP-MPM Document 15-2 Filed 12/21/2009 Page 31 of 32

CONCLUSION

For the foregoing reasons, Defendants respectfully request that the Court dismiss this

action with prejudice.

Respectfully submitted,

TONY WEST
Assistant Attorney General

JIM M. GREENLEE
United States Attorney

SANDRA SCHRAIBMAN
Assistant Director
Federal Programs Branch

s/ Wendy M. Ertmer
WENDY M. ERTMER
DC Bar No. 490228
Trial Attorney
Federal Programs Branch
U.S. Department of Justice, Civil Division
Ben Franklin Station
P.O. Box 883
20 Massachusetts Avenue NW, Room 7218
Washington, DC 20001
Telephone: (202) 616-7420
Fax: (202) 318-2382
Email: wendy.ertmer@usdoj.gov

Dated: December 21, 2009 Counsel for Defendants

31
Case 3:09-cv-00104-WAP-MPM Document 15-2 Filed 12/21/2009 Page 32 of 32

CERTIFICATE OF SERVICE

I hereby certify that on December 21, 2009, I electronically filed the foregoing with the

Clerk of the Court using the ECF system, which sent notification of such filing to the following

counsel of record:

Michael P. Farris
WEBSTER, CHAMBERLAIN & BEAN
1747 Pennsylvania Avenue, NW, Suite 1000
Washington , DC 20006

Phil R. Hinton
WILSON, HINTON & WOOD, P.A.
P. O. Box 1257
505 Waldron Street
Corinth , MS 38834-1257

s/ Wendy M. Ertmer
WENDY M. ERTMER

32